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Abstract
This paper contends that despite it functioning as a catalyst, the ICC “Africa problem” did not start with the arrest warrant against al-Bashir. To fully comprehend the current legitimacy crisis we must understand the nature of the negotiation process that led to the adoption of the Rome Statute and its enduring impact. In particular, we must acknowledge the uneven ability of states to formulate and signify their preferences on the basis of their identity and interests during the negotiation process. Drawing from Wiener’s theory of contestation, the paper contends that the absence of meaningful engagement with issues germane to some ICC stakeholders before and during the Rome Conference facilitated the adoption of the Rome Statute, but also plausibly created difficulties for the Court in the long run. Specifically, it postponed unavoidable conflict over contentious issues and undermined the likelihood that specific stakeholders would develop a sense of ownership over the Statute.
Disclosure statement
No potential conflict of interest was reported by the author.
Supplemental material
The supplemental material for this paper is available online at http://dx.doi.org/10.1080/09557571.2020.1751070
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
1 This is surprising considering that African countries were amongst the first to ratify the Rome Statute and thus critical its entry into force in 2002. They constitute the largest regional block of ICC member states with thirty-three members (Assembly of States Parties to the Rome Statute website). Yet in the past few years, Gambia, South Africa, Namibia, and Kenya announced plans to withdraw from the ICC and Burundi exited in 2017.
2 A strong and independent court refers to a court that is independent from the United Nations Security Council (UNSC), has inherent jurisdiction and a prosecutor with propio motu powers.
3 This is not to say that individual, small states did not articulate any preferences. The Caribbean states, for example, fiercely advocated for the inclusion of transnational drug crimes (Robinson Citation2002).
4 The model defines small/ poor states as those with (natural logarithm) of GDP below 24 in 1998. Slovenia, Sri Lanka and Ecuador are all examples of countries in this category.
5 The LMG was an informal alliance of diverse states from around the world that shared a commitment to establishing an effective international criminal court. It grew from a dozen founding states to around 60 states by the beginning of the Rome Conference (Bassiouni Citation1999). The CICC is an umbrella organization that coordinated the efforts of hundreds of NGOs during the negotiation and continued to advocate for the ratification of the Rome Statute and for cooperation with the Court (CICC website).
6 In 1994, the ICC Statute was discussed in the General Assembly’s Sixth Committee. The United Nations International Law Commission had produced a first draft that year (United Nations Citation1994).
7 Negotiations continued after the Rome Conference in the Preparatory Commission. These negotiations produced the ICC’s Rules of Procedure and Evidence.
8 It is worth mentioning other significant contributions, which approach the creation of the ICC from a diplomatic history perspective (Bassiouni Citation1999; Benedetti and Washburn Citation1999; Benedetti et al Citation2013).
9 Wiener’s understanding of culture involves recognizing common national and regional “background experiences” derived from historical interactions and expressed through everyday practices of normative validation (Wiener Citation2014, 45). Therefore, it can accommodate ideational and material variables.
10 Coding states’ support for the ICC based on detailed information on each country’s positions throughout the negotiation would be preferable, yet it presents insurmountable difficulties. Consider Goodliffe and Hawkins’ work (2009). The authors measure support for the ICC on the basis of official statements made by individual states throughout the negotiation process. To account for numerous “silent” delegations, they code countries that did not express an opinion as neutral. This leads to a conservative bias in their result, which the authors acknowledge (Goodliffe and Hawkins Citation2009, 985). Alternatively, we could assume continuity and rely on the last position expressed by the state. However, this would be only a partial solution because of the high number of countries that remained uninvolved in the negotiations leading up to Rome.
11 There are statements from states from the preparatory work carried out before the Rome Conference and during the conference. These materials, in addition to the limitations addressed above, are limited because they do not encompass informal meetings and, in the case of the 1995 Ad Hoc Committee, the 1996-1998 Preparatory Committee most of the discussions during the Rome Conference were not recorded as minutes therefore they do not allow us to identify the positions of specific countries (Gissel Citation2018, 730.)
12 This led states opposed to the ICC to repeatedly protest the non-transparent manner of the LMG (Benedetti and Washburn Citation1999, 29).
13 Signature is a more reliable indicator of support than ratification because the latter entails a stronger commitment and involves diverse internalization processes.
14 This relies on the assumption that states that did not support the Rome Statute (those which voted against the statute or abstained) did not sign the Statute in the aftermath of the Rome Conference. The United States, in many ways an outlier, is the only case that challenges this assumption.
15 Gurowitz (Citation1999) defines state identity in terms of four dimensions: (1) self-identification with the centre of the Western society of states, or its periphery, in terms of material and cultural attributes; (2) relation to the dominant power in the international system; (3) commitment to the principle of multilaterialism and (4) extent of activity or passivity in international activities.
16 Multilateralism and activism fail to capture a preference for the use of legal instruments in the conduct of international affairs, which is critical in relation to the ICC. Accordingly, the paper substitutes multilateralism and activism with Legalism. Legalism incorporates elements of multilateralism and activism, but also embodies a preference for international law as a policy instrument.
17 It is worth highlighting that in our model, Western-ness refers solely to cultural attributes in an effort to distinguish material and ideational sources of state behaviour.
18 Presumably, if the paper addressed other norms, such as support for LGBTQAI rights, it would also operationalize Western-ness in a different manner. This alternative operationalization would emphasize other dimensions of identification with the West critical in relation to that norm, such as pluralism.
19 However, scholars emphasize how international criminal law often falls short of these aspirations (Vasiliev Citation2017, 84).
20 For a critical view on international criminal law’s individualism from an African perspective, see Gevers (Citation2014).
21 Both components of the indicator are equally valued.
22 An alternative measure, the number of universal post-1945 international treaties ratified, led to similar results.
23 Only those countries with a population greater than 500,000 people are included. The reason is that micro-states are inherently different (Neumann and Gstohl Citation2006) and any findings incorporating these cases would be difficult to interpret.
24 I also ran the model with different versions of the dependent variable: (1) a dichotomic variable (vote for or against the Statute/ Abstention), (2) an ordinal variable with three possible values (LMG states, vote Statute, or vote against the Statute/ Abstention), and an ordinal variable with five possible values (original LMG states, late LMG states, non-LMG states signatories, non signatories that votes against the Statute, non signatories who abstained). This last version relied on secondary sources to make an educated guess regarding who abstained and who voted against the Statute in addition to the United States, China and Israel. The outcomes were extremely similar across all versions.
25 There is a 10% data missing in this model. I ran the model without this variable and ran it with imputed values, based on multiple predictors, and the results did not change.
26 France was in actuality, an ICC accepting state and not an ICC Entrepreneur.
27 To make the changes in Western-ness and PMID comparable we analyzed their marginal effects taking under consideration what percentage of possible total change they represented. One unit change on Western-ness entailed a 33% change of the total range. We used this as a parameter to analyze the marginal effects of PMID. Specifically, we multiplied the (±1/2) coefficients by 33% of PMID total possible value (26).
28 Poor countries are those that scored 24 or less in the variable GDP –that is, natural logarithm of GDP for 1998. The median and average values of this variable are slightly above 23.
29 There is a strong positive correlation between GDP and number of recorded participations in the negotiations that preceded the Rome Conference as there is between these and support for the Rome Statute. When added to the model, however, participation before Rome is not statistically significant.
30 Gissel explains that African states did not in their majority submit written comments on the 1994 ILC Draft Statute that was circulated nor did they participate in the Prep Coms. In addition, there were only six African states in the first Ad Hoc committee. It was only in the last meeting in April 1998 that wider participation was possible (2018, 730). Their low participation before Rome validates the idea that many African states did not enter the negotiation with clear preferences.
31 Consider the Common Statement South African Development Community (SADC) issued in 1997. In this document, after affirming their support for a strong and independent court with complementary jurisdiction, state representatives “[r]eiterate that the basic principle underlying the settling up and operation of the Court should be the acceptance that the Court should contribute to the furtherance of the integrity of states generally as well as equality of states within the principles of international law” (Common Statement in Maqungo Citation2000, 43)
32 The United States also sought to utilize its resources to influence small states (TerraViva Citation1998, 2; Struett Citation2008, 185)
33 Interviews with states’ delegates and NGOs’ representatives in June and July 2009 confirmed this assessment.
34 A member of the German delegation also was of the opinion that in that in the case of NGOs’ relationships with small delegations, “NGOs might have been able to shape their positions.” In discussion with the author (July 24th, 2009).
35 The paper the United States circulated on state practice of amnesties and pardons constitutes an important exemption. However, in its introduction, the paper states “The U.S. delegation has raised the difficult matter of how to address amnesties and pardons in the context of a statute for an international criminal court. This matter, however, has not been a subject of discussion in the negotiations” (U.S. Delegation 1997, 1), which justified its efforts to bring the matter into discussion.
36 According to Scharf, these are Articles 16, 17, 20 and 53 (1999, 524–5).
37 Here I refer to the LMG as a whole. Some individual LMG states had very limited resources.
38 Compare norm entrepreneurs “vertical strategies” of norm diffusion with the more inclusive approach of communicative entrepreneurs (Gonzalez Ocantos Citation2018).
39 In the words of a member of the German delegation, “there were areas, not central to the heart of governmental interests… like women’s rights, victims rights, gender issues… there I think they (the NGOs) were quite successful… States were happy to make compromises on areas that were not that sensitive.” In discussion with the author (July 24th, 2009).
40 Interview with French delegate (July 14th, 2009).
41 Article 124 enables a state to “declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8” (Rome Statute),
42 Interview with French delegate (July 14th, 2009). See also Tabak (Citation2009, 1073).
43 Interview with French delegate (July 14th, 2009).
44 This refers to the African states who had not become members of the LMG nor were overt critics, such as Sudan.
45 In 2002, only four years after its adoption and notwithstanding strong opposition from the United States (Betti Citation2016), the Rome Statute came into force. Currently there are 123 states parties to the Statute.
46 The vision of the CICCC is “a more peaceful world through universal access to justice for victims of war crimes, crimes against humanity and genocide” (CICC website).
47 The Coalition has produced informative materials, conducted workshops and training sessions worldwide to explain local actors how to implement the Statute. Some of these materials are available online through the CICC website or the websites of NGO members. See, for example, the implementation guidelines made available by Amnesty international and the guidelines for Parliamentarians in the Parliamentarians from Global Action website.
48 García Iommi emphasizes the degree to which this participation was limited, explaining that while the average number of recorded statements per state in the drafting process leading to Rome was thirteen (and 23 for European states) the number is fewer than three for African states (2020, 7).
49 Membership varies from 0 to 2 (the score for signature is 1 and for ratification or accession is 2), implementation of cooperation and complementarity legislation varies from 0 to 2 (the score for a draft is 1 and score for enacted legislation is 2), adoption of the APIC varies from 0 to 2 (the score for signature is 1 and for ratification or accession is 2) and resistance to BIAs varies from 0 to 1 (the score for not signing is 1 and for signing is 0). The data for these variable is available in the CICC website.
50 I define high support as ratification (2) plus some combination of the other variables for a total score of 6 or higher.
51 The fact that the ICC has opened investigations and cases in all three countries further establishes the usefulness of these cases to evaluate Accepting states relation with the Court.
52 While the discussion focused on Uganda, other Accepting states also struggled to fully cooperate with the Court on account of amnesties. Armenia, another Accepting state, could not ratify the Statute because its Constitutional Court rendered a negative opinion on the compatibility of the Statute with its domestic legal system on the grounds that national authorities would be deprived of the right to grant pardon (CICC Citation2012).
53 This argument fits with Hillebrecht and Strauss argument that that cooperation with the Court is contingent upon domestic political gain, such as the possibility of using the ICC to constrain or remove domestic opposition actors (Citation2017, 163).
54 In terms of the relation of Accepting States with the ICC today, Colombia constitutes an interesting case. The ICC did not open an investigation in Colombia but played an important role in the peace process. Colombia signed the Rome Statute in 1998 and ratified it in 2002. As a result of the extreme violence that characterizes its fifty-year old conflict it has also been under preliminary examination by the Office of the Prosecutor since 2004. Yet the role of the Court in this country has been consultative rather than direct, in line with the idea of positive complementarity (Hillebrecht, Huneeus and Borda Citation2018). Differences between the ICC and Colombia have arisen, with Colombia asserting its primary jurisdiction over crimes committed in its territory, upholding a strategy informed by transitional justice in contrast to the ICC’s retributive approach (Easterday Citation2015, 449). Colombia’s ability to withstand pressure is not in small measure the result of its resources, specifically the legal expertise of local actors.
55 We can also characterize detractors as antipreneurs (Bloomfield Citation2016). Indeed, while the LMG and the CICC advanced the creation a strong and independent Court, China and the United States, among other states, advocated for a status-quo institution.
56 All other variables at means.
Additional information
Notes on contributors
Lucrecia García Iommi
Lucrecia García Iommi is an assistant professor with the Politics Department at Fairfield University. Her research focuses on International Relations theory, global governance, and norms dynamics. She specializes in the International Criminal Court (ICC). Professor Garcia Iommi has published her research in International Studies Quarterly, International Relations, and Global Constitutionalism. Email: [email protected]